41 So. 427 | Ala. | 1906
— The third count of the complaint is good.—E. T., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443. It is not open to the criticism that it assumes the running of any train of cars or locomotives upon the defendant’s track would he negligence. Fairly construed, the meaning is the same as if it had.alleged that the plaintiff’s mirles were killed by reason of the negligence of the defendant in and about the running of its train, etc.
The fourth count -was sufficiently specific as to the place of the accident, and was otherwise good. The Car-loss Case, supra, relied on by appellant to support the proposition that the averment- in the fourth count of the locus is not definite- enough, was decided under a. statute which has been repealed by its omission from the Code.
The demurrer to the-fifth count was properly overruled. The count is as full and specific as many that have been sustained by this court.—Central of Co. Ry. Co. v. Edmondson, 135 Ala. 338, 33 South. 480, and cases there cited. The count avers that the negligence of the defendant in the manner specified caused the death of the mules, and thus shows the causal connection between the negligence and the injury.
The specific pleas, to which demurrers were sustained, alleged only such facts as were available under the general issue, and hence the defendant suffered no injury-in any event from the rulings on demurrers.—L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 South. 603. Furthermore, the defendant actually introduced under the general issue the evidence that would have been admissible and that it -would doubtless have offered under the special pleas.
The portion of the court’s general charge to which an exception was reserved was in harmony with these views. The defendant was not entitled to the general
The verdict was neither unsupported by, nor was it against the weight of the evidence, and hence no error was committed in denying the motion for a new trial.
There is no error in the record.
Affirmed.